People v. Davis, 105092.

• Court: Supreme Court of Illinois
• Writing for the Court: Thomas
• Citation: 899 N.E.2d 238,231 Ill.2d 349
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Jermaine DAVIS, Appellant.
• Docket Number: No. 105092.,105092.
• Decision Date: 20 November 2008

899 N.E.2d 238 231 Ill.2d 349 The PEOPLE of the State of Illinois, Appellee,
v.
Jermaine DAVIS, Appellant. No. 105092. Supreme Court of Illinois. November 20, 2008.

[899 N.E.2d 240]

Michael J. Pelletier, Patricia Unsinn, Deputy Defenders, and Douglas R. Hoff, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, for appellant.

Lisa Madigan, Attorney General, Springfield, and Richard A. Devine, State's Attorney, Chicago (James E. Fitzgerald, Alan J. Spellberg, Annette Collins, Veronica Calderon Malavia, Judy L. Deangelis, Amy Watroba Kern, Assistant State's Attorneys, of counsel), for the People.

OPINION

Justice THOMAS delivered the judgment of the court, with opinion:

Defendant, Jermaine Davis, was charged with aggravated battery, armed robbery and first degree murder. The first degree murder charge was brought under three different theories—intentional murder, knowing murder (also called strong probability murder), and felony murder. See 720 ILCS 5/9-1(a)(1), (a)(3) (West 2004). A jury in the circuit court of Cook County returned a general verdict of guilty against defendant on the first degree murder charge, as well as a guilty verdict on the offense of aggravated battery. Defendant was sentenced to serve 25 years in prison. Defendant appealed, arguing, inter alia, that (1) the cause must be remanded for a hearing under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), because the trial court improperly collapsed the three-step Batson process and allowed the State's peremptory challenge of an African-American juror without engaging in the third stage of the analysis, and (2) because the conduct forming the basis of his aggravated battery was inherent in the murder, the trial court erred in instructing the jury it could convict him of felony murder predicated on aggravated battery. The appellate court rejected those claims and affirmed defendant's convictions and sentence. No. 1-05-1251 (unpublished order under Supreme Court Rule 23). We allowed defendant's petition for leave to appeal. 210 Ill.2d R. 315.

BACKGROUND

Defendant's trial began on February 20, 2004, with voir dire. Defense counsel questioned venire member Robert Hicks in the course of selecting the jury. That questioning revealed that Hicks was a retired janitor, who had lived in Chicago since 1970. His hobby was fishing and he kept himself abreast of current events by watching channel 9 news. When asked if he could be a fair juror if selected, Hicks said, "I think so." Defense counsel followed this up by asking if Hicks was "comfortable [that he could] be fair." Hicks responded, "I am comfortable." The prosecutor did not ask any questions of Hicks.

Voir dire proceeded, and after one additional prospective juror was questioned, the prosecutor announced that he would exercise a peremptory challenge to Hicks. At that point, defense counsel requested a discussion with the court off the record. Upon returning to the record, the trial court decided to conduct its own inquiry into whether the State had committed a

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Batson violation in its challenge to Hicks. The following proceedings were then had on the record:

"THE COURT: All right. There has just been—I don't really feel that it has been raised to a Batson type position but, State, why don't you articulate why—and in fairness, being overly fair to the Defense and to the court system, could you articulate why you don't want Mr. Hicks on the jury?

MR. KEATING [Prosecutor]: Judge, yes.

Judge when asked if he could be fair—and I wrote this down, Judge—his response was I think so. In my opinion, Judge, he equivocated when the question was asked. Based on that Judge, I am uncomfortable. And for that reason, we are exercising a peremptory. * * * Thank you.

MR. MAX [Defense counsel]: Judge, for the record, we are making an objection based on the fact that Mr. Hicks— just so the record is clear—is African-American. The defendant is African-American. We raised the Batson issue while we were off record, and we believe there is no valid reason for him to be struck. Other people had said I think so. There has been no follow up by the State.

THE COURT: Mr. Jones, did you raise the Batson issue as an issue formally off record or is Mr. Max assuming things that you didn't say?

MR. JONES [Another defense attorney]: Judge, I don't—

THE COURT: That's easy.

MR. JONES: I don't believe I officially—

THE COURT: What you have to do is have integrity here rather than bias.

MR. JONES: I don't believe I officially raised it off the record, Judge.

THE COURT: All right. Don't misquote what happens off the record otherwise there is no purpose in being off the record, Mr. Max. And it wasn't raised off the record as a formal type of objection.

Who is the other African-American male that was excused?

MR. JONES: That was Mr.—

THE COURT: These things are easily made accusations by the Defense. I don't take anything lightly when someone is called either prejudiced or racist or anything like that.

Go ahead.

MR. MAX: For the record, to make a Batson objection, I am not calling anyone prejudiced or racist. What I am doing is protecting an issue for the record where if we don't object, that is not a record on appeal, that is waived. I am mandated to make that record to object.

THE COURT: You are not mandated to make allegations.

All right. Go ahead. Who is the other person that you said was excused?

MR. JONES: Andre Honorable, Judge.

MR. KEATING: That's correct, Judge. I made my motion for cause at that time. I think I made my record at that time.

THE COURT: It is in there. And if Mr. Max doesn't want to pay attention to it, that's fine.

I find that your—first of all, your reasons for excusing Mr. Hicks was [sic] race neutral. He said he thinks he could be fair. That's enough for you know, a race neutral reason to use a peremptory challenge.

All right.

MR. KEATING: Thank you, Judge.

THE COURT: Go ahead.

899 N.E.2d 242

R. KEATING: Judge, we accept this panel.

THE COURT: Okay."

The trial eventually proceeded to the evidentiary portion where it was established that a group of men beat Demetrius Thomas unconscious on October 10, 1999, near a Chicago housing project. A Chicago Housing Authority police officer responded to a call about the incident and found Demetrius Thomas lying in a garbage Dumpster. The victim was taken to a hospital and remained in a coma for two months before he died of an infection that resulted from the brain injuries he suffered in the beating.

Quincy Campbell was a key witness that testified on behalf of the State. He had a criminal record and was a suspect in the case until he gave a statement to police. At trial, he stated that he witnessed a group of men beat the victim. Campbell had difficulty at trial, however, with names and events, saying that he did not remember any of the names of the people involved in the beating. But he did acknowledge at trial that he had given a written statement to police on January 3, 2000, about the incident. According to Campbell's written statement, he knew from the neighborhood four of the five men who beat the victim. They were Maurice Thomas, Pee Wee (a.k.a. Edward Durant), Hip Hop, and Kevin. Campbell identified defendant as Hip Hop at trial.

Campbell's written statement further indicated that during the encounter, Pee Wee struck the victim with a stick three times. Campbell described the stick used to beat the victim as a piece of cut lumber. At one point, the victim got on his feet and ran. But Thomas, Pee Wee, Kevin and defendant chased him around a building where the others began beating him again. When the victim fell to the ground, defendant began striking him with his feet. At one point, Pee Wee went through the victim's pockets. While Campbell was watching the beating, Thomas asked Campbell to act as lookout for police, but Campbell refused. When the beating ended, defendant picked up the victim by the collar and pants and tossed him into a garbage Dumpster. Campbell denied participating in the beating and denied that the victim's sister, Samara Sadler, was present.

Other evidence presented revealed that police conducted a lineup on January 22, 2000, in which Campbell identified defendant. Later that day, police confronted defendant with the fact of that identification. Defendant then gave a written statement to an assistant State's Attorney in which defendant admitted his involvement in the incident. According to that statement, defendant was "hanging out" in the area when he saw Maurice Thomas bring the victim outside from the building. The victim broke free of Maurice's grasp, ran around the back of the building and entered a hallway on the first floor. Maurice ran after him, and Maurice and Pee Wee proceeded to beat the victim. Defendant "kept watch" from about two feet away to make sure no one saw what was going on or tried to interfere. After Thomas and Pee Wee finished the beating, the victim was lying facedown and unconscious. Defendant then grabbed him by the back of his pants and shirt and threw him into a Dumpster.

Samara Sadler, sister of the victim, testified for the defense. She observed the victim come out of the building with Campbell and Maurice Thomas. Campbell and Thomas then began hitting the victim. She knew both Campbell and Thomas from the neighborhood. The group ran around the building and Sadler followed. When she got there, she observed the victim lying on the ground and unconscious. Two or three persons were around

899 N.E.2d 243

the victim, and she did not know if one of them was defendant. She knew defendant from the neighborhood, but testified that she did not see defendant strike the victim at any time.

During its closing argument, the State argued that it was not necessary that it prove defendant intended to kill the victim, but only that defendant or one for whom he was accountable combined to do an unlawful act, such as...